RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-00076 (Case 6)
INDEX CODE: 131.00
COUNSEL: MR. GUY J. FERRANTE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
He receive direct promotion to the grade of lieutenant colonel as if
originally selected by the CY94A (11 October 1994) Central Lieutenant
Colonel Selection Board (P0594A); and, his record be corrected
accordingly.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was unjustly passed over for promotion to lieutenant colonel
(LtCol) by an inherently unfair and flawed Special Selection Board
(SSB) process which did not provide him with a fair, equitable and
accurate promotion reconsideration.
He received SSB consideration by the P0594A LtCol Selection Board with
a corrected Promotion Recommendation Form (PRF) in January 1997 and
was subsequently nonselected. He would have been among the 99.2% of
in-the-promotion (IPZ) officers promoted to LtCol by the original
selection board had his record not been defective, and had he received
a direct promote “DP” promotion recommendation from his senior rater
on the original PRF. As a result of these “faults” in his record and
faulty selection boards, direct promotion is the only viable option.
In support of his request, counsel submits a legal brief and
additional documents associated with the issues cited in his
contentions (Exhibit A).
_________________________________________________________________
STATEMENT OF FACTS:
Information extracted from the Personnel Data System (PDS) reveals the
applicant’s Total Active Federal Commissioned Service Date (TAFCSD) as
30 May 1979. At the time the application was submitted, he was
serving on active duty in the grade of major, with an effective date
and date of rank of 1 July 1990.
The applicant was nonselected for promotion to lieutenant colonel by
the CY94A (P0594A) central selection board. Thereafter, three errors
in the applicant's record were discovered: (1) the duty title on his
December 2, 1993, OPR was incorrect; (2) his official record contained
a preliminary "draft" of his January 26, 1992 OPR, and (3) an award of
the Air Force Commendation Medal was omitted from the Officer
Selection Brief. The Evaluation Report Appeal Board (ERAB) corrected
the first two errors. The third was corrected through the AFBCMR
process. The applicant was also granted SSB reconsideration by the
CY94A Lieutenant Colonel Selection Board.
During the regular promotion cycle, the applicant received a "Promote"
recommendation on his Promotion Recommendation Form (PRF) from his
senior rater. After the aforementioned corrections were made to the
applicant's record, his senior rater reconsidered and revised the
promotion recommendation he submitted when the applicant initially met
the P0594A central selection board and awarded him a DP for the P0594A
special selection board (SSB). The applicant was then reconsidered
for promotion by that SSB, which convened on January 13, 1997, but was
not recommended for retroactive promotion, notwithstanding the DP
recommendation in his selection folder.
Applicant's OPR profile, commencing with the report closing, 17 May
1991 follows:
Period Ending Evaluation
17 May 91 Meets Standards (MS)
26 Jan 92 MS
26 Dec 92 MS
# 2 Dec 93 MS
2 Dec 94 MS
## 2 Dec 95 MS
###2 Dec 96 MS
2 Dec 97 MS
# Top report at the time he was considered and nonselected for
promotion to lieutenant colonel by the CY94A Central Lieutenant
Colonel Board, which convened on 11 October 1994.
## Top report at the time he was considered and nonselected for
promotion to lieutenant colonel by the CY96C Central Lieutenant
Colonel Board, which convened on 8 July 1996.
The applicant was reconsidered and nonselected for promotion to
lieutenant colonel by an SSB for the CY94A selection board, which
convened on 13 January 1997.
### Top report at the time he was considered and nonselected for
promotion to lieutenant colonel by the CY97C Central Lieutenant
Colonel Board, which convened on 21 July 1997.
Information maintained in the Personnel Data System (PDS) reveals that
the applicant had an established date of separation (DOS) of 31 May
1999. He retired on 1 June 1999 in the grade of major, with a total
of 20 years and 1 day of active service.
_________________________________________________________________
AIR FORCE EVALUATION:
The Selection Board Secretariat, HQ AFPC/DPPB, stated they disagree
with counsel’s contention that the special selection board (SSB)
process is unfair in that the use of benchmark records from the gray
zone from the central board creates a higher standard for selection
than that for the central board. Because the benchmark records are
very similar in quality, it is not unusual to have some inversion in
the benchmark order of merit (OOM) created by the SSB. Whenever the
inversion is of a nature that a nonselect benchmark record receives
the highest score by the SSB and the consideree's record receives the
same score or even the second highest score, i.e., beats all the
select benchmarks, the nonselect benchmark record and the consideree's
record are returned to the board members for rescoring. If the
consideree's record scores higher than the nonselect benchmark, the
consideree will be a select. Regardless of the situation, SSB members
are not informed which record is a benchmark record or a consideree
record.
DPPB indicated that counsel’s statement "that there was no singular
cut-off for the board; only individual cut-offs for each individual
panel of the board" is incorrect. On the board in question, CY94
Central Lieutenant Colonel Board, the aggregate gray zone method was
in effect. Therefore, each panel's gray zone was aggregated to form
one gray zone for the entire board to resolve. After that resolution,
the benchmark records were subsequently identified for future SSBs.
As to the court cases cited by counsel, DPPB stated that they pertain
to selection boards conducted in the 1980s and have no applicability
to this application.
As to the cited talking paper dated 7 Jan 84 and counsel’s suggestion
that the selection of benchmark records was faulty, DPPB disagrees.
As this talking paper was accomplished 14 years ago, they cannot say
with any great certainty what the author meant in the verbiage which
was used. However, DPPB thinks it refers to not using anomaly records
as benchmarks. A search of DPPB files revealed a subsequent talking
paper on the same subject which was written 31 Mar 86 and more
accurately conveys their criteria for selecting benchmark records.
However, it should be noted that even this talking paper still
addressed panel gray resolution not the aggregate gray resolution used
on the board in question. Despite the verbiage which was used in the
7 Jan 84 talking paper, DPPB’s current procedures for selecting
benchmark records have been unchanged over the years and are in full
compliance with applicable guidelines.
In summary, it is DPPB’s opinion that this application is without
merit and they recommended it be disapproved. A complete copy of this
evaluation is appended at Exhibit C.
The Appeals and SSB Branch, HQ AFPC/DPPPA, reviewed this application
and recommended denial. DPPPA stated that absent clear-cut evidence
the applicant would have been selected by the P0594A board, they
believe a duly constituted board comprised of senior officers is the
most appropriate method of determining the applicant's potential to
serve in the next higher grade. The board's prerogative to do so
should not be usurped except under extraordinary circumstances. The
applicant's circumstances are not extraordinary. Further, to grant a
direct promotion would be unfair to all other officers who competed
for promotion to lieutenant colonel by the P0594A board and were
nonselected. DPPPA contends that had the applicant been a selectee by
either the original board or one of his subsequent SSB considerations,
he would not consider the promotion process illegal. Further, direct
promotion of the applicant would circumvent the competitive nature of
the Air Force promotion process. DPPPA stated the applicant has
failed to prove he did not receive full and fair consideration by the
original and subsequent P0594A selection boards.
DPPPA asserts that even if the applicant were to prove the promotion
system illegal, they do not understand how this correlates to his
promotion status. If the boards were found to be illegal, the remedy
would not be to promote the applicant. A reaccomplishment of the
boards would be the only logical remedy. Again, as repeatedly stated
in the past, DPPPA finds the often used compilation of memorandums and
letters included in the applicant's appeal package to be wholly
without merit. DPPPA concurs with the advisory opinion from HQ
AFPC/DPPB and recommended the applicant’s request for direct promotion
be denied.
DPPPA addressed the additional statements in counsel's brief, which in
their opinion have no relevance to the applicant's promotion
considerations or request for direct promotion.
(1) On page 7 of the brief, footnote 4 states the applicant
was informally advised that no officers were recommended (for
promotion) by the January 1997 SSB. In fact, 10 officers were
recommended for promotion by the January 1997 SSBs. None, however,
were from the CY94A lieutenant colonel board.
(2) In attachment 7, the applicant states he was told 13
records were meeting his lieutenant colonel SSB during the week of 13
Jan 97. DPPPA has been unable to identify who may have given him the
information. The facts are that the CY94A Lt Col SSB (primary zone,
i.e., in- and above-the-promotion zone) considered 12 records. Of the
12, 10 were benchmark records and 2 were considerees. As stated
above, neither consideree was recommended for promotion. It is
possible that there was a third consideree who may have withdrawn
his/her record from consideration prior to the board convening date -
that could account for the "13 records”.
A complete copy of this evaluation is appended at Exhibit D.
The Staff Judge Advocate, HQ AFPC/JA, stated that the applicant's
primary assault in this application for relief is upon the Air Force
implementation of the SSB process itself. As to the technical aspects
of this issue, JA defers to, and concurs with, the comprehensive DPPB
advisory opinion. Suffice it to say, most of the applicant's argument
is unsupported supplication that hardly establishes the existence of
any prejudicial error. The closest the applicant comes to proof is
the statistical data he submitted (Atch 3) relating to the high
percentage (99.2%) of individuals with DP recommendations who were
promoted to lieutenant colonel during the CY94 central selection
board. The applicant believes that given his record (master's degree,
recent decorations, command experience, etc.), he was otherwise
competitive for promotion upon receiving the DP recommendation after
his records were corrected. He believes, and has stated, that he
would have been one of the 99.2% promoted by the CY94 central
selection board, but for the errors in his records. He reasons that
since he was not selected by the SSB, it could only mean that SSBs
operate under different, higher standards than do the central
selection boards. He further concludes that since the SSBs operate
under different (and more selective) standards, he cannot get a fair
or equitable reconsideration for promotion.
In response, JA notes first that a promotion recommendation, be it a
DP or anything else, is just that - a promotion recommendation. It
does not guarantee promotion and is but one factor that a board will
consider in examining a member's entire record to determine who is
best qualified. Second, applicant has failed to acknowledge the
reality that a DP recommendation given as part of the "correction”
process is not necessarily the same as a DP given in due course during
the regular promotion recommendation process. More importantly, the
fact that applicant's corrected record garnered a DP in the
corrections process does not mean (nor does it have any bearing on the
issue) that had his record been correct to begin with, he would have
been assured a DP in the first instance. In that environment,
applicant would have had to compete for a limited number of available
"real world" DPs, whereas the DP he ultimately received was a virtual
"freebie." In the correction process, an individual is not competing
with anyone else for a limited number of DPs. The DPs are not
controlled, and giving a DP to an individual does not take it away
from anyone else; i.e., a senior rater loses nothing by awarding such
a DP because it is not at someone else's expense. In other words, it
is much easier to get a DP as part of the correction process and, as
such, it cannot be expected to carry the weight of a DP given in the
normal course. In the end, the fact that an officer, like applicant,
competed at an SSB with a DP recommendation and was nonselected
reveals that the board conscientiously considered all the records and
obviously accorded the "DP" recommendation the weight it deserved;
they did not merely rubber stamp the record for selection because it
contained a "DP" recommendation. Such conscientious deliberation is
precisely the board's statutory duty. In the end, applicant's
nonselection does not evidence an illegality or shortcoming with the
special selection board process employed by the Air Force, but rather
reflects the fact that applicant's corrected record, even with a DP
recommendation, was simply not strong enough to beat the requisite
benchmark records (none of which presumably had DPs) and warrant
selection.
JA stated that the Air Force cannot perfectly recreate the promotion
process, nor is it required to do so by law as the applicant seems to
imply. What the Air Force is required to do, and what it has done in
this case, is create a virtual reality in which the applicant is given
another look to see if correcting his records would have made any
difference in the promotion process. In this case, the applicant
competed against benchmark records which were actually evaluated in
the CY94 central selection board. The governing statute, 10 U.S.C.
628(a)(2), does not prescribe a particular procedure nor method to be
used in operating SSBs. In JA’s view, the procedure selected by the
Air Force represents a legitimate exercise of personnel management
authority that is not inconsistent with the governing law, and in
fact, fully comports with the requirement that an officer's "record be
compared with a sampling of the records of those officers of the same
competitive category who were recommended for promotion, and those
officers who were not recommended for promotion, by the board that
should have considered him." The burden is on the applicant to prove
otherwise, and he has failed to do so.
As to the request for direct promotion, both Congress and DOD have
made clear their intent that errors ultimately affecting promotion
should be resolved through the use of special selection boards. Air
Force policy mirrors that position. In that regard, where many good
officers are competing for a limited number of promotions, only the
best officers can be promoted. Without access to all the competing
records and an appreciation of what those records mean, an
appreciation gained from years of military experience, JA continues to
believe the practice of sending cases to SSBs is the fairest and best
practice. For the past (and hopefully in the future) the BCMR will
consider direct promotion only in the most extraordinary circumstances
where SSB consideration has been deemed to be totally unworkable. The
applicant's case clearly does not fall into that category.
Finally, even if JA was to assume arguendo, that applicant has
established an error that an SSB could not remedy (a notion JA firmly
rejects), it is quite another matter to directly promote him. That
would presuppose that applicant was indeed one of those best qualified
to be promoted. Applicant has competed at several different promotion
boards (including at the original central board, where approximately
1/3 of those officers like applicant who received "promote"
recommendations were selected) and if, indeed, his record were truly
that deserving, he could have - and would have - been selected for
promotion.
JA is convinced that the Air Force's evaluation and promotion
processes are legal and fundamentally fair. Moreover, it is JA’s
opinion that the applicant has failed to present relevant evidence of
any error or injustice. For these reasons, JA recommended the
application be denied.
A complete copy of this evaluation is appended at Exhibit E.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant, through counsel, expressed his strenuous objection to
the consideration of any factual and/or procedural representations by
HQ AFPC that are undocumented and thus amount to no more than the
convenient, unsworn "spin" of the author.
Counsel reviewed the advisory opinions and indicated that the most
telling feature of the advisory opinions is the issue that none of
them address directly the fact that SSB’s apply a manifestly higher
standard than central selection boards by recommending only those
officers who, upon reconsideration, outscore all of the nonselect
benchmarks and equal the score of at least one select benchmark.
There is no evidence to support DPPB’s claim that rescoring ever
occurs. Even by DPPB’s description, there is a rescoring only if a
nonselect benchmark scores the highest and the consideree either ties
that score or comes in second. The problem is the higher standard
that must be met in order to be selected, regardless of whether there
is any rescoring in applying that standard.
Counsel indicated that DPPB offered a 1986 Talking Paper that it
claimed “more accurately” conveys AFPC’s procedure for selecting
benchmark records than the 1984 Talking Paper submitted by the
applicant. The applicant is not satisfied with what is evasively
termed a “more accurate” description, and this Board should not be
either. Counsel recommended that the Board demand and get
authoritative evidence of the procedures that were utilized by the SSB
the applicant met. Even accepting the 1986 Talking Paper as
describing the applicable guidelines does not help AFPC, however,
because it still introduces subjectivity that distorts the benchmark
selection process.
Counsel stated that the advisory opinions do nothing to convince a
reasonable reader that the applicant received fair and realistic
reconsideration by the SSB. That SSB applied a manifestly higher
standard than the regular promotion board. It utilized undefined
procedures, both in applying that standard and in selecting the
benchmarks against which the applicant competed. The end result was
SSB consideration at which the applicant had a markedly and
demonstrably lower chance of being selected than would have been the
case at the CY94A central selection board.
With regard to the issue of direct promotion, DPPPA argues that a
selection board’s “prerogative” to judge which officers are best
qualified for promotion “should not be usurped except under
extraordinary circumstances.” Applicant submits that “extraordinary
circumstances” exist when, by the Air Force’s own admission, an
officer cannot receive fair and accurate promotion recommendation by
an SSB.
Counsel stated that in prior proceedings, the Air Force determined
that the applicant’s record should have included a PRF bearing a “DP”
recommendation when the CY94A central selection board considered it.
His PRF was upgraded to a “DP” and he was afforded promotion
reconsideration by SSB. JA now maintains that the applicant’s
nonselection by the SSB can be explained “by the reality that a DP
recommendation given as part of the ‘correction’ process is not
necessarily the same as a DP given in due course during the regular
promotion recommendation process.” There are only three possible
conclusions: (1) the record correction process does not work because
the applicant did not receive the full and fitting relief to which he
was entitled under 10 U.S.C., Section 1552; (2) the promotion
reconsideration process does not work because the applicant did not
receive the faithfully accurate promotion reconsideration contemplated
by 10 U.S.C., Section 625 and AFI 36-2501; or (3) neither the record
correction nor the promotion reconsideration process work.
Counsel referenced a prior case (AFBCMR Docket No. 89-00431) where the
Board directly promoted an officer. Counsel asserts that the very
same rationale used to promote the referenced officer applies to the
applicant’s case. When the record of an officer having a 99.2% chance
of selection cannot be corrected to allow full and fair consideration
by an SSB, “extraordinary circumstances” exist. The Board must direct
the applicant’s promotion because there is no other means to that end.
In further support of his request, the applicant submits letters from
his current commanders.
Counsel’s response and the additional evidence of support are appended
at Exhibit G.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
Pursuant to the Board’s request, the Officer Promotions Branch, HQ
AFPC/DPPPO, provided an analysis of the applicant’s record as it met
the CY94 selection board, with the approved corrections. DPPPO stated
that the applicant’s written record is slightly below average relative
to his peers, with some notable detractors--weak recent OPRs, slight
lack of depth/breadth, no leadership test, relative recent UPT
elimination. With a 45 percent opportunity for receiving a Definitely
Promote (DP) through the normal Management Level allocation process,
DPPPO does not believe the applicant’s record is comparable in quality
to typical DP records awarded in this year group (1979).
Additionally, the PRF itself notably lacks PME and job recommendations
- omissions that, by themselves, send fairly strong adverse signals to
promotion boards…even with a DP recommendation.
A complete copy of this evaluation is appended at Exhibit H.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
Counsel reviewed the advisory opinion and indicated that the applicant
does not maintain that his record is absolutely perfect in every
conceivable respect. The issue is whether the applicant’s record is
that of a highly qualified officer who should already have been
promoted to the grade of lieutenant colonel (as Lt Gen F---, Maj Gen B-
--, Lt Gen (sel) T---, and Col H--- believe) or the “slightly below
average” officer that the advisory writer purports to describe. Even
a casual glimpse at the applicant’s record would lead any objective
reader to wonder what record the advisory writer was looking at. The
AFBCMR should afford more weight to the opinions of senior and
experienced officers who have seen the applicant in action than to the
out-of-step opinion of the advisory writer.
A complete copy of counsel’s response is appended at Exhibit J.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law
or regulations.
2. The application was timely filed.
3. Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice. warranting favorable action
on the applicant’s request for a Secretarial promotion to the grade of
lieutenant colonel. The Board was persuaded by the evidence submitted
that the applicant has been the victim of an injustice. We recognize
that the applicant’s corrected record has been reevaluated by a duly
constituted special selection board (SSB) and he was a nonselectee for
promotion to lieutenant colonel. In this respect, after reviewing the
applicant’s submission and the evidence of record, i.e., the allusion
to “freebie” Definitely Promote (DP) recommendations, we have serious
reservations concerning whether the applicant received full and fair
consideration for promotion by the SSB. We have examined applicant’s
record and did not find anything in his record that would allow us to
believe he could not serve appropriately in the higher grade. We
noted that the applicant’s P0594A Promotion Recommendation Form (PRF)
was upgraded to a DP by the senior rater, with the concurrence of the
MLEB president, based on corrections to the applicant’s records and
new insight into his career record of demonstrated performance. In
our opinion, had the senior rater been properly aware of the
applicant’s accomplishments, he would have awarded the DP initially
and the applicant would have met the CY94A Central Lieutenant Colonel
Selection Board with an accurate record. At the CY94A selection
board, 99.2% of individuals with DPs were promoted to lieutenant
colonel. We do not find that the applicant’s record as corrected was
below average as the Air Force states. We therefore are concerned
about the perception of the SSB process. Additionally, we took
particular note of the statements provided from senior officials who
support promoting the applicant to the grade of lieutenant colonel
based on his demonstrated integrity, leadership and superior
performance. In view of the above, and having no basis to question
the integrity of these senior officials, we believe the applicant is
the victim of an injustice by not being selected for promotion to
lieutenant colonel. We further believe that reasonable doubt exists
concerning the fairness of the SSB process as applied in this case,
and this doubt should be resolved in favor of the applicant by
promoting him retroactively. Under normal circumstances, we would not
usurp the promotion selections of an SSB; however, we find the
circumstances of this case to be extraordinary. We therefore
recommend that the applicant’s records be corrected to the extent
indicated below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that:
a. He was selected for promotion to grade of lieutenant
colonel by the Calendar Year 1994A Central Lieutenant Colonel
Selection Board, which convened on 11 October 1994; and, that action
be initiated to obtain Senate confirmation.
b. Upon Senate confirmation, he be promoted to the grade
of lieutenant colonel with award of an appropriate date of rank and
effective date of promotion.
c. He was released from active duty on 31 May 1999 and
retired on 1 June 1999 in the grade of lieutenant colonel rather than
in the grade of major.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 11 March 1999 and 20 September 1999, under the
provisions of AFI 36-2603:
Mr. Thomas C. Markiewicz, Panel Chair
Mr. Gregory W. DenHerder, Member
Mr. John E. Pettit, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 5 Jan 97, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPPB, dated 26 Mar 98, w/atch.
Exhibit D. Letter, HQ AFPC/DPPPA, dated 9 Apr 98.
Exhibit E. Letter, HQ AFPC/JA, dated 14 Jul 98.
Exhibit F. Letter, SAF/MIBR, dated 3 Aug 98.
Exhibit G. Letter from counsel, dated 2 Oct 98, w/atchs, and
letter from applicant, dated 11 Jan 99, w/atchs.
Exhibit H. Letter, HQ AFPC/DPPPO, dated 29 Apr 99.
Exhibit I. Letter, AFBCMR, dated 18 May 99.
Exhibit J. Letter from counsel, dated 26 Jul 99, w/atchs.
THOMAS C. MARKIEWICZ
Panel Chair
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
MILITARY RECORDS (AFBCMR)
FROM: SAF/MI
SUBJECT: AFBCMR Case of Major APPLICANT, United States Air Force,
Retired
I have carefully considered all the circumstances of this case and do
not agree with the recommendation of the panel of the AFBCMR to promote the
applicant to the grade of lieutenant colonel (lt col) as though he had been
selected by the Calendar Year (CY) 1994A Central Lieutenant Colonel
Selection Board that convened on October 11, 1994, and retire him in the
higher grade effective June 1, 1999.
Applicant was considered, but not selected, for promotion to the grade
of lt col by the CYs 94A and 96C Central Lieutenant Colonel Selection
Boards. Subsequent corrections to his records resulted in, among other
things, the award of a “Definitely Promote” (DP) promotion recommendation
and reconsideration for promotion to lt col by a Special Selection Board.
He was considered but not selected for promotion by the SSB that convened
on July 21, 1997, and retired for length of service in the grade of major
on June 1, 1999.
In applying to the AFBCMR, the applicant contends that he was unjustly
passed over for promotion to lt col by an inherently unfair and flawed SSB
process which did not provide him with a fair, equitable, and accurate
promotion reconsideration. He further contends that he would have been
among the 99.2% of the in-the-promotion-zone (IPZ) officers promoted to lt
col by the original selection board had his record not been defective, and
had he received a “DP” promotion recommendation from his senior rater on
the original PRF; and that as a result of these “faults” in his record and
faulty SSB process, direct promotion is the only viable option. Counsel
also references a prior AFBCMR case and asserts that the very same
rationale used to promote this officer applies to the applicant’s case.
After reviewing the applicant’s submission and the evidence of record,
i.e., the allusion to “freebie” “DP” recommendations by AFPC/JA, the AFBCMR
panel has serious reservations whether the applicant received full and fair
consideration for promotion by the SSB. They found nothing in the
applicant’s record that would allow them to believe he could not serve
appropriately in the higher grade. They also note that his PO594A PRF was
upgraded to a “DP” by the senior rater, with the concurrence of the MLEB
president, based on corrections to his records and new insight into his
career record of demonstrated performance. Lastly, based on its own
personal assessment, the Board did not find that the applicant’s record, as
corrected, was below average as the Air Force states. Because of these
observations and the solid support from the applicant’s rating chain, the
Board believes that reasonable doubt exists concerning the fairness of the
SSB process as it applied in this case. I disagree.
It is regrettable that the applicant’s record was not correct when
considered by the original selection board, however, it was properly
considered for promotion to Lt Col with a corrected record by an SSB.
These boards, convened pursuant to 10 USC, Section 628, are charged with
the responsibility of considering the record of the officer as his record
would have appeared to the board that considered him. That record is
compared with a sampling of the records of those officers of the same
competitive category who were recommended for promotion, with scores just
above the original quota line, and those officers who were not recommended
for promotion, with scores just below the original quota line, by the board
that considered him. The members of the SSBs also take an oath that they
will perform their duties as members of the board without prejudice or
partiality. In addition, unlike the AFBCMR, the SSB members have access to
the benchmark records of the original board and, as a consequence, can make
a more precise judgment of an officer’s promotability.
Applicant’s counsel asserts, essentially, that Air Force SSBs do not
replicate the competition of regular promotion boards; that applicant had
only a paltry fraction of the chance of being promoted compared to the
opportunity he would have had had his corrected records been considered by
a regular selection board; and that he has not received the fair,
equitable, and legal promotion consideration to which he is entitled. I do
not find these uncorroborated assertions sufficiently compelling, however,
to override the rationale provided by AFPC/JA concerning the propriety of
the SSB process or the fairness of the applicant’s consideration for
promotion. Admittedly, the characterization of an after-the-fact “DP” as a
virtual “freebie” and that it is not necessarily the same as a “DP” given
in due course during the regular promotion recommendation process is
troublesome. Nonetheless, because AFPC/JA is not the office of primary
responsibility (OPR) for the officer promotion process, I am not persuaded
that the applicant did not receive a full and fair consideration by the
SSB. I also do not find the statistical data indicating that had the
applicant received a “DP” recommendation for the original selection board,
his selection rate would have been 99.2% sufficiently compelling to
conclude that the relief sought should be granted. The statistics indicate
that the applicant’s probability of selection for promotion by the original
selection board would have been significantly higher had he received a “DP”
during the original process. On the other hand, the statistics
unequivocally establish that the receipt of a “DP” does not guarantee
selection for promotion. Therefore, other than speculation based on
statistical data and the unwavering support from officers in his rating
chain (which is not at all uncommon), the applicant has submitted no
corroborative evidence to show that he did not receive a full and fair
consideration for promotion by the duly constituted SSB. More
significantly, he has provided no evidence to indicate that the SSB members
did not perform their sworn duty.
In view of the foregoing and in the absence of corroborative evidence
of impropriety in the SSB process or that the SSB members did not perform
their sworn duty, I find no compelling reason to grant the applicant’s
request. Accordingly, it is my decision that the requested relief should
be denied. Regrettably, under the Air Force’s competitive officer
promotion system, many officers who could serve successfully at the next
higher grade are not deemed “best qualified” for promotion once the quota
is applied.
In arriving at my decision, I have also reviewed the prior AFBCMR case
that counsel refers to as being similar and find it clearly distinguishable
from the applicant’s case. This applicant, unlike the applicant, submitted
persuasive evidence that he had been unfairly deprived of an opportunity to
become competitive for promotion because of factors over which he had no
control.
The Air Force officer promotion boards which considered his records for promotion were held in violation of statute, DoD Directive and Air Force regulations. DPPPA indicated that if the Board should grant the applicant’s request to receive SSB consideration by the CY93A central selection board, with a corrected Apr 93 OPR and CY93A (P0593A) PRF, the “corrected by” annotations on those reports (and any other corrected documents in his OSR) will be removed. In this respect, we note the...
AF | BCMR | CY1999 | BC-1995-00115
The Air Force officer promotion boards which considered his records for promotion were held in violation of statute, DoD Directive and Air Force regulations. DPPPA indicated that if the Board should grant the applicant’s request to receive SSB consideration by the CY93A central selection board, with a corrected Apr 93 OPR and CY93A (P0593A) PRF, the “corrected by” annotations on those reports (and any other corrected documents in his OSR) will be removed. In this respect, we note the...
A complete copy of the Air Force evaluation is attached at Exhibit D. The Senior Attorney-Advisor, AFPC/JA, reviewed this application and states that the entire Air Force promotion recommendation process is totally a creature of Air Force regulation; it is not governed at all by statute or DoD Directive. A complete copy of the Air Force evaluation is attached at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reviewed the Air Force evaluation and states that...
AF | BCMR | CY1999 | BC-1997-01786
A complete copy of the Air Force evaluation is attached at Exhibit D. The Senior Attorney-Advisor, AFPC/JA, reviewed this application and states that the entire Air Force promotion recommendation process is totally a creature of Air Force regulation; it is not governed at all by statute or DoD Directive. A complete copy of the Air Force evaluation is attached at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reviewed the Air Force evaluation and states that...
No new evidence is provided for the Board to consider (see Exhibit C). AFPC/DPPPO recommends the application be time-barred. A promotion recommendation, be it a DP or anything else, is just that, a recommendation.
ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 90-00851 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ RESUME OF CASE: On 31 July 1990, the Board considered applicant’s request that the Promotion Recommendation Forms (PRFs) for the Calendar Years 1989 and 1990 (CY89 & CY90) Lieutenant Colonel Selection Boards be removed from his records; he be considered for promotion...
AF | BCMR | CY1999 | BC-1990-00851A
ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: 90-00851 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ RESUME OF CASE: On 31 July 1990, the Board considered applicant’s request that the Promotion Recommendation Forms (PRFs) for the Calendar Years 1989 and 1990 (CY89 & CY90) Lieutenant Colonel Selection Boards be removed from his records; he be considered for promotion...
AF | BCMR | CY1999 | BC-1997-02055
_________________________________________________________________ AIR FORCE EVALUATION: The Report and Queries Section, AFPC/DPAIS1, indicated that a review of the applicant’s duty history revealed that the upgrade to “Chief, Electronic Combat Systems” was entered into the PDS with an effective date of 1 Aug 94. A complete copy of the DPAIS1 evaluation is at Exhibit C. The Selection Board Secretariat, AFPC/DPPB, reviewed this application and indicated that they disagreed with the...
_________________________________________________________________ AIR FORCE EVALUATION: The Report and Queries Section, AFPC/DPAIS1, indicated that a review of the applicant’s duty history revealed that the upgrade to “Chief, Electronic Combat Systems” was entered into the PDS with an effective date of 1 Aug 94. A complete copy of the DPAIS1 evaluation is at Exhibit C. The Selection Board Secretariat, AFPC/DPPB, reviewed this application and indicated that they disagreed with the...
ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 4EC 0 8 1998 IN THE MATTER OF: - 558-76-8013 -.. DOCKET NUMBER: 88-028 COUNSEL: NONE HEARING DESIRED: YES She be promoted to the grade of lieutenant colonel; or, that the AF Form 77, Supplemental Evaluation Sheet, which replaced t w o voided Officer Evaluation Reports (OERs), be altered to inform promotion boards of the reason for the removal of the reports. The applicant explains her promotion to the grade...